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Hobby Lobby: A victory for religious liberty?

Among those who celebrated the Supreme Court's decision in favor of Hobby Lobby (which Grant Gallicho covered here) was the USCCB. "We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business," the bishops conference said in a statement June 30. "Now is the time to redouble our efforts to build a culture that fully respects religious freedom."

How much will the Hobby Lobby decision help to advance that goal? After all, as Cathleen Kaveny writes in her analysis for Commonweal, Supreme Court decisions "are not only or primarily about the named plaintiffs. Their purpose is to set the normative framework" that will decide similar disputes. And Kaveny sees reason for concern: "what the Court has done in the Hobby Lobby case is transform the Religious Freedom Restoration Act—a statute enacted by Congress to counteract a bad Supreme Court decision that harmed powerless religious minorities—into a tool for powerful minorities to resist what they believe to be dangerous social and political change."

The ruling is, on its face, a victory for religious-liberty claims. But not an unambiguous one:

While the ruling recognizes that corporations have free exercise rights, it identifies those rights solely with the owners of the corporation. The legitimate interests of other corporate stakeholders, particularly the employees, who may not share their employer’s religious views, evidently have no standing. In this instance, it seems that more money buys you more religious freedom—and more freedom to infringe on the choices of others.

Second, the opinion provides virtually no way to evaluate the strength of a plaintiff’s religious-liberty claim. Although RFRA’s text speaks of “substantial” burdens on a claimant’s exercise of religious liberty, the ruling pulls the teeth of this requirement. According to Alito and the majority, a burden is “substantial” as long as a claimant sincerely says it is. But as Ginsburg noted, this is an invitation to run through a minefield, not a way out of one.

Read the whole thing here. And don't miss E. J. Dionne's column "After Hobby Lobby," in which he notes Justice Alito's positive assessment of the HHS contraceptive-coverage accomodation (what the USCCB refers to as the "so-called 'accomodation'") in his finding in favor of Hobby Lobby and wonders, "Will he and the other conservatives remember these friendly remarks when they rule in future litigation against the Obama contraception compromise?"

Building a culture that "fully respects religious freedom," as the bishops have called for, is a good goal (and they might just as easily have declared the moment right for redoubled efforts if the Court had decided against Hobby Lobby). The question will be whether the Hobby Lobby decision is a solid foundation for those building efforts. Kaveny and others make a strong case that the answer may be no.

Comments

I doubt this will be a victory for religious freedom. The conservative majority seems content to empower the already powerful with whom they share an affinity while those they don't sympathize with will be seen as frivolous and denied the new protections.

Well, we could have a complete victory for religious liberty if the Supreme Court were to decide that anyone who claimed a religious objection to anything could be exempted from it. So I suppose one could make this a two-part question. Was the Hobby Lobby decision a victory for religious liberty, and if so, was this particular victory for religious liberty beneficial to the country and our form of government?

It seems to me that had Hobby Lobby chosen to organize itself as other than a for-profit corporation, its religious liberty on this issue would have been secure. It may not be the best of analogies, but it seems to me if you have a religious objection to selling tickets to pornographic movies, you don't take a job as a cashier at a porn theater and then try to claim a religious exemption. That is extreme, of course, but it seems to me that people who want certain kinds of religious liberty in a pluralistic society have a certain obligation not to place themselves in a situation (when they have reasonable alternatives) that will generate conflict.

I think there is some truth to what Ryan Rowekamp said, as well. I get the feeling that the conservative members of the court weren't torn between constitutional principles laid down by conservatives in Employement Division v. Smith, on the one hand, and the RFRA, on the other. I don't believe Scalia said, "I would have liked to decide this case based on my opinion in Employemnt Division v. Smith, but unfortunately a statute passed by congress forces me to decide otherwise." If Employment Division v. Smith had not involved illegal drugs, would the ruling have been the same? If these kinds of things are going to be decided on a case-by-case basis, then it's going to be a matter of the judges who happen to decide the case, not some clear and consistent principle.

(I am reading Team of Rivals at the moment, and Chief Justice Roger B. Taney has just rendered his decision in Dred Scott, so I am not high on the Supreme Court at the moment.)

The legitimate interests of other corporate stakeholders, particularly the employees, who may not share their employer’s religious views, evidently have no standing.

What people dont seem to get is that its not the employers responsibility to ensure that ALL the legitimate interests of its stakeholders are satisified. Employees can still access contraceptives regardless of whether they are included in the Employer designed and sponsored health insurance policy. If you dont like the policy, QUIT.

While the ruling recognizes that corporations have free exercise rights, it identifies those rights solely with the owners of the corporation.

That is the part I still don't see. The ruling is definitely a victory for the religious rights of corporations. I don't see what rights the owners have vindicated. Because: If I were to buy out the Greens, I would exercise Hobby Lobby's religious rights. They would not take with them the right either to trump the judgment of the FDA or the right to control insurance employed to Hobby Lobby employees. If I decide that contraceptive coverage is OK, but not Viagra, I guess I can at least argue it so long as I own Hobby Lobby. But if I sell, the right to make such decisions stays with the corporation. The only entity getting a right vindicated here is the legal fiction.

Point 2: The USCCB has a problem, I think, In an unscientific poll of 12 Catholic males, the bishopa are seen as opposed to Obamacare. I was under the impression there is a distinction between opposition to contraception and opposition to the whole idea of universal health care insurance. If there is, the bishops have totally failed to make it. This was a group of fairly well informed people who want to be loyal to their church and who see the Catholic position as opposition to Obamacare and support for the root-and-branch Republican opposition.

Tom - the results of the unscientific poll may partly be due to memory: the bishops really *were* opposed to Obamacare back in 2009, in a really high-profile way - in fact, they nearly succeeded in scotching the whole thing.

I'm not completely sure how they feel about it now. I did read one instance of a bishop, during the enrollment period that concluded this past spring, urging his eligible people to enroll, and even made Catholic arguments as to why it's good to have healthcare. I don't know if he's typical or an outlier, though.

This has the potential to go way beyond contraceptives. Back in the 1970s I worked for a company whose health insurance specifically excluded out-of-wedlock birth and also excluded the out of wedlock child of a female employee. (This was in the fine print and none of us realized it until a female employee became pregnant out of wedlock and being a devout Catholic chose life. She had to pay 100% for the costs of delivery and hastily got another job so her child would have health insurance.)

Religious objections to mental health treatment are common (and by no means confined to Scientologists). Common mental illnesses such as schizophrenia usually show up in the teens, and it is vital that a schizophrenic teenager be treated and stabilized immediately before the illness becomes hard to reverse and the person is unemployable. It would be unconscienceable for a teenager with mental illness to go untreated because the parent's employer was a conservative protestant who believed mental illness should only be treated with prayer.

And, of course, corporate lawyers and HR departments are adept at using laws creatively to maximize profit. If any employer can opt out of providing any aspect of health insurance by declaring a unverifiable religious objection, Obamacare is essentially gutted.

I have no sympathy with the UCCB in this instance because they had an easy way to preserve their religious freedom- pay the $2000 per employee tax and let the employees buy their health insurance on the exchanges.

This Hobby Lobby decision is becoming more obviously a mistake with each passing day. Let's hope that the US constitutional system is self-correcting enough to minimize the error. It seems that there are stirrings on Capitol Hill to engineer a congressional fix.

But don't hold your breath, the Republicans in the House will oppose anything that has even the slightest scent of the Affordable Care Act on it - you know, that odor of Kenya they so detest.

Of course, the biggest error of SCOTUS is that men like the 5 Catholic Supremes are allowed to impose their twisted world-view on the rest of us, with impunity it would seem - very Catholic ideology indeed!

The only plausible remedy available is to take back the House and either temporarily increase the number of justices on SCOTUS and/or curtail jurisdiction of the federal judiciary [Article III - also called jurisdiction or court stripping making certain legislative or executive actions unreviewable by the federal judiciary] over the ACA - a very low probablity given electoral politics these days.

I guess partisan politics really does trump the constitution especially when the 5 Catholic Supremes determine that something has contravened their narrowly prescribed world-views.

I'm still amused that Catholic hierarchs are all gung-ho about the 1st Amendment to the exclusion of the other amendments [especially given the autocratic ideology of the hierarchs], seemingly not understanding that the US Constitution is really a balance of limited rights. In this case the 14th Amendment's guarantee of "due process" and "equal treatment under the law" has always seemed to limit the 1st Amendment's religious practice guarantee.

"While the ruling recognizes that corporations have free exercise rights, it identifies those rights solely with the owners of the corporation. The legitimate interests of other corporate stakeholders, particularly the employees, who may not share their employer’s religious views, evidently have no standing. In this instance, it seems that more money buys you more religious freedom—and more freedom to infringe on the choices of others."

Well, yeah. The employees aren't the ones being forced to subsidize an activity that they believe to be religiously forbidden. So their religious views aren't even relevant here. And if they don't like the views of Hobby Lobby or a few other idiosyncratic employers, they can probably find a job elsewhere. That's the beauty of freedom of choice -- no one is forced to work for Hobby Lobby, and we should be a bit more liberal than Kaveny towards people who fundamentally disagree with each other. Live and let live.

And it's not that "more money buys you more religious freedom." That's just silly. More money, as in this case, puts your religious freedom more at risk, because it's an attractive target for other people. It's like Willie Sutton's excuse for robbing banks: "because that's where the money is."

Finally, Hobby Lobby isn't "infringing on the choices of others." The women who want to purchase IUDs or Ella can just buy it for themselves using the medium of exchange that we call "money." They are no worse off than they are with regard to food or housing or anything of the other thousands of goods that they purchase in the marketplace rather than being given it for "free" by their employer.

MightBe, It is perfectly true -- and totally irrelevant -- that a Hobby Lobby employee who wants contraceptives can buy them herself or find a job elsewhere. That was the case before the ACA was enacted, and it is the case now. Likewise, I could then, and can now, pay out of pocket or buy my own insurance to cover childbirth in a hospital or to cover treatment for prostate cancer.

The problem was, not everyone could do that. Hobby Lobby's $15 an hour employees weren't going to ever be able to cover cancer treatment out of pocket, and other places' minimum-wage employees weren't going to be able to cover doctor visits. Hence, there was a hope and an effort to do what every other major industrialized country did long ago -- find a way to assure medical care for everyone who needs it. The effort we have -- the bastard child of a Republican think tank and a Democratic Congress -- defines basic health care for all, and it includes contraceptive coverage in its definition, along with childbirth and prostate cancer.

The only way to get to universal is to somehow agree on what's covered. If anyone or everyone is allowed to pick and choose we wind up back where we started, decades behind the rest of the civilized world.

Now, it can be argued that what Hobby Lobby objects to actually is abortion, not contraception. That's Lisa Fullam's thread. Or it can be argued that contraception shouldn't be covered as a medical issue. You think that's fun? Wait until we cover "medical" marijuana. But the place to argue those things is in the halls of Congress. Admittedly, that is difficult with one House run by dedicated do-nothings. But that is the only way you will get to universal coverage in a democracy without doing violence to the laws and public comity.

And, if I may, I have had contraceptive coverage for more than 30 years -- a fact I didn't know until I looked for it in my employer-paid health insurance policy when this flap began. I think no sin was committed by having it there, unused, and I am certainly not going to be a jerk and sue my former employer to have it removed for me alone.

Religious objections to mental health treatment are common (and by no means confined to Scientologists).

Hi, Anne E., If I understand all this correctly, I believe the way this particular hypothetical would be sorted out would be: Obamacare already has mental-health coverage requirements (I think), so mental health treatment for a covered employee/family member already is in-plan. If an employer lodged a religious objection, then it would eventually end up in court, and the court would need to determine whether the government has a compelling interest in treating mental health, and whether Obamacare is the least intrusive way of providing it. I hope, and even assume, that the answer would be, "Yes" to both those questions. But I'd be glad to be corrected. (Fraternally, of course :-))

Your anecdote about the non-coverage for an out-of-wedlock pregnancy and birth is pretty amazing.

My take, and I have seen very few commentators who agree I'll add, is that Hobbylobby had zero to do with religious liberty and everything to do with the politics of Obamacare. Roberts had to switch sides to avoid being further pilloried by the right as he was after upholding the Affordable Care Act. This was political payback/payoff pure and simple. Anyone who thought the Court would not decide this as it did was ignoring the anger that the earlier decison has caused among the rightists. What I don't think many expected was that the decision would be so poorly thought out. After all, the Court's opinion, written by Sam Alito basically argues that facts don't matter. Reality is irrelevant and as long as you say you "believe" something, you have a claim. Really silly and really dangerous. One has to wonder, too, what the reaction would have been, both on the Court and in the public, and particularly among rightist commentors had Hobbylobby been owned by Muslims who argued that they have a sincere rligious belief that women don't belong in the workplace. Of course that's a whole separate issue. But fundamentally, this is about a change in strategy in dismantling Obamacare. They failed to take the whole plan down both when Romney lost and then when the Court upheld the mandate, so now they are going after it piecemeal.

In her article, Cathleen Kaveny refers to Smith as "a bad Supreme Court decision". I believe that's a pretty common assessment. I understand Cathleen's argument that Hobby Lobby has expanded the scope of RFRA. Does Hobby Lobby also directly limit or attenuate Smith's effect on the "normative framework" that Cathleen describes? In other words, has Smith now been partially or even totally rolled back?

Canon law is opaque to outsiders and offers remedies in retrospect. New York Religious Corporation Law replicates the absolute power of the diocesan ordinary given by canon law: "No act or proceeding of the trustees of any such incorporated church shall be valid without the sanction of the archbishop or bishop of the diocese to which such church belongs, or in case of their absence or inability to act, without the sanction of the vicar-general or of the administrator of such diocese."

The relatively obscure case of Blaudziunas v. Egan heard by the New York State Court of Appeals and won by the Archdiocese of New York in November, 2011, was hailed by litigator Peter Johnson on Fox and Friends as a victory for religious freedom.

Independent of the issues, what collateral benefits will the Roman Catholic Church accrue from these "triumphs of religious freedom?" It seems like the Church has been made virtually omnipotent in the state of New York under civil law (RCL). Do the Supreme Court decisions have the potential to confer national omnipotence?

I guess it depends how much compelling government interest and substantial burden are determined by the courts. An objective set of principles broad enough to support the Hobby Lobby ruling would probably overturn Smith while a standard based on the Catholic sensibilities of the majority would probably not.

Does Hobby Lobby disapprove of Viagra and other male sexual performance enhancements on religious grounds for all men - especially gays, of course - except those who are desperately trying to get their wives or girl friends pregnant?

Just trying to understand the internal logic of the 5 Catholic Supremes ...

There have been several comments to the effect of, Would you still say that about Hobby Lobby's religious rights if it were a Muslim corporation. Well, maybe for mainline Christians, it is close enough. It has the first year of its four-year Bible Study program in its local public school district now, hopes to be in 100 by 2016 and "thousands" of public and private schools the following year.

From the comments of Bible expert/author and corporate officer Steve Green, the course will be fundamentalist enough to give most of the Catholic bishops tsouris, especially when the four-year course is mandated for their little sheep. Green said the course would have to start off as elective but he hopes to see it become mandatory. Mandatory? From the Hobby Lobby? I think there's a precedent that will get our little dears out of this class.

Hobby Lobby already provides full coverage for 16 forms of birth control, according to numerous news reports, but the court upheld the company’s right to block four types of “morning after” pills and Intra-Uterine Devices that violate the Catholic belief that life begins at conception.

Mersino suggested her client believes that the federal Religious Freedom Restoration Act of 1993 exempts Weingartz from providing insurance coverage for any form of contraception. “My client’s beliefs conform with the teachings of the Catholic church,” she said.

Dan Weingartz, who could not be reached for comment, carries on a family business formed in 1945. They have 170 employees who receive health care benefits but have never received any form of insurance coverage for birth control.

Cases pending across the nation that challenge the Obamacare mandate could shape the Hobby Lobby precedent in the future because the Supreme Court justices did not define the “closely held” corporations with “sincere” religious beliefs that can avoid contraception coverage.

Thorin - Wasting Time is exactly right IF we lived in a Theocracy. We don't live in a Theocracy.

Also,

Finally, Hobby Lobby isn't "infringing on the choices of others." The women who want to purchase IUDs or Ella can just buy it for themselves using the medium of exchange that we call "money." They are no worse off than they are with regard to food or housing or anything of the other thousands of goods that they purchase in the marketplace rather than being given it for "free" by their employer.

The really weird part regarding the logic of the above idea is that the female employee can take her Hobby Lobby pay check on Friday afternoon, cash her check and buy the birth control items mentioned. So what is the difference with it being provided for her within the Health Insurance plan, that is also a part of her "salary" as an employee? (Ryan Rowekamps Employee compensation is not a subsidy. It is earned by the employee's labor.)

And finaly, I think Ms. Kavaney is speaking about the nuances of law, corporate law, Supreme Court decisions etc that are not necessarily easily understood by the average non versed lawerly types. If laws were easily understood, there would be no reason for lawyers and then we could all rejoice! :)

1) A Hobby Lobby employee takes part of his paycheck and, without Hobby Lobby's knowledge or involvement, spends it on an underage prostitute.

2) The government requires Hobby Lobby management to enter into a contract with underage prostitutes to provide "free" service to employees who want it. The only employee who takes advantage of this "free" deal is the same male employee from Scenario 1.

In either case, the end result is the same: a male Hobby Lobby employee ends up visiting an underage prostitute, paid for by money that came out of Hobby Lobby wages.

Yet if you were the employer, wouldn't you be a bit more upset over number 2? Perhaps if you think about it a bit, it won't seem so weird that an employer might not to be forcibly involved in such activity.

Jim, your question is rather easily answered if you think for just a moment about why some people might object to what they think are abortifacients and why Viagra isn't the same thing as an abortifacient. You might still disagree with Hobby Lobby, of course, but it's rather dimwitted to suggest that they're guilty of self-contradiction or inconsistency here.

Mersino suggested her client believes that the federal Religious Freedom Restoration Act of 1993 exempts Weingartz from providing insurance coverage for any form of contraception. “My client’s beliefs conform with the teachings of the Catholic church,” she said.

Some forms of contraception are not for contraception but serve other purposes. The side effect is that they prevent ovulation but that does not mean that the patient is necessarily being prescribed them for that purpose. Besides, isn't there some kind of reasonableness that needs to be applied in these matters. Very, very few Catholics are opposed to contraception. It sounds frivolous and not serious.

It would be like saying the miltary that you are a conscientious objector for religious reasons when, in fact, 85- 90%% of the adherents are snipers in the Marine Corps.

From a Catholic perspective, a vasectomy is bad. From an evangelical perspective (they don't object to birth control at all), a vasectomy is fine, because it is NOT THE SAME THING as an abortifacient.

Is it really so hard for folks to understand why there might be some people in the world who object to abortifacients but not to anything else? I mean, there are lots of religious ideas and principles that make less sense than that one, so I'm not sure why so many Commonwealers are having such difficulty and keep thinking they've caught evangelicals in a contradiction.

Philip, my analogy was quite apt. If an employer objects on religious grounds to X, it is perfectly logical for the employer to be upset at a government mandate to be directly involved in the purchase of X, as opposed to the usual situation wherein employees choose X without any employer knowledge let alone involvement.

X could be abortifacients, prostitution, heroin, automatic weapons, etc, it doesn't matter, the only point was to get you to understand why this is not a "weird" objection as you seem to think.

Not from this Catholic's perspective it isn't. Nor is it necessarily from the Canadian bishops perspective. Perhaps Rome or the US has other views but that is for them to sort out. For many Catholics it is a completely responsible. The problem is that the US Bishops were opposed to the contraceptive mandate because it (supposedly*) went against the teaching of the Catholic church nothwithstanding the fact that hardly anybody believes, follows, or supports it.

* I say supposedly because the Winnipeg statement from the Canadian bishops clearly stated of those who opted for contraception that "whoever honestly chooses that course which seems right to him does so in good conscience". In other words no need for confession.

Don't get me wrong. I know some very good people,Catholic and non Catholic who practice NFP for a variety of reasons. It helps them stay close and is very beneficial so I am not at all criticizing the choice or logic of those who opt for that for natural reasons or religious reason. I applaud and support their choice in their relationship. I just don't think that you can make a universal ban when there is no consensus on it and I don't think it leads to acceptance of abortion on demand. Evangelicals are a good example of how this distinction can be drawn.

When you parse through all the carefully constructed comments it is easy to be led away from the realization that religious freedom is not the real issue here. It is a testing ground for acquisition of power by a wealthy minority who want only to enforce their views on those who do not embrace their religious rigor. In other words--more freedom for employers means less freedom for employees (to avail themselves of a benefit they need). Cathleen Kaveny has expressed it correctly. Affluence does not take long to become megalomanic self righteousness.

It's not, but once you make them pay for it, you make them a party to the transaction. You can't, on the one hand, mandate that someone pay for something, and on the other argue that it is a matter of supreme indifference to them.

It's not, but once you make them pay for it, you make them a party to the transaction. You can't, on the one hand, mandate that someone pay for something, and on the other argue that it is a matter of supreme indifference to them.

That is, of course, an economic or legal argument. It's based on the premise that capital is necessary and labor is charity. It may even be why Justice Alito wrote what he did. But it has nothing intrinsic to do with conscience or the protection of religious liberty or the RFRA.

It would be fun if this article and comments came with an audio disclamer, 'The comments expressed herein are not necessarily those of the owners of Catholicism.' We are not talking here about the underage employees of a multinational in China paid a a few dollars a day. Moreover, culturally, there have been great strides in the direction of the penumbra of religious freedom recently in this country as exemplified by gay marriage. Considering the other side of the cultural spectrum, it would seem to me to be generous, and, in that sense, Catholic to allow the owners of Hobbly Lobby not to be ordered to pay for methods that they sincerely believe are 'first day abortions,' and that merely seems consistent with the law, not the whim of the Supreme Court.

Employee benefits costs, along with cash compensation, are part of the total package of remuneration for an employee's labor. That's how an employer markets what he/she spends on a given employee. It is done so to show the true cost of having an employee over and above cash compensation.

How the employee spends her/his compensation is no business of the employer's. How the employee spends vacation and holiday time off is no business of the employer. How the employee spends cash compensation is no business of the employer.

Another cost of hiring an employee is being held to account for adhering to employment mandates with respect to overtime, working conditions and general non-discrimination practices.

In exchange for all of this the employer is allowed certain tax deductions for the cost of employment.

Count me, a small business owner, distinctly in Jim McCrae's corner. We provide a total remuneration package to our employees that includes medical benefits. We do so because our history with our employees shows that this is a valued form of compensation that is responsive to their (and their familes') needs in Amercan society. Healthy employees, some of whom are heads of healthy families, are a distinct advantage to us in our work. As Jim M notes, we also take the legal tax deduction

I don't inquire how our employees manage *any* of their compensation because I implicitly suppose them to be free moral agents. If an employee behaved at work in a manner that were inconsistent with safety, good order, or standard of care for our business [say she were chemically impaired] I would intevene to reestablish the necessary conditions for fair and effective work. But I, as the owner, do not provide moral instruction to or evangelize my employees.

Exactly the case. And by extension the bishops have flown in the face of the Democratic social justice agenda which has been consistent with Church teaching for decades. They have also alienated a sizable part of their flock thereby exacerbating the swelling population of former Catholics. Two bullets right through the foot I'd say. So much for leadership. (And then there's the ideological snubbing of Pope Francis' messaging about rebalancing priorities between intolerant orthodoxy and helping the marginalized).

@ Wasting Time: Don't you think it is long past the time when Catholics should be able to critique the misogynistic and corporatist disciples within our own community without all the defensive and narcissistic labelling?

You sound like the thinned-skinned Cardinal George who labels critics who nail him about his hypocrisy and complicity in child abuse, always screaming "anti-Catholic."

Besides, are you now setting yourself up to be the arbitor - or is it Grand Inquisitor? - of what is "Catholic" and what is not? The Catholic Church I grew up in was a world-wide, expansive, intellectually rigorous community that tolerated a wide range of views and ran the gamut of anti-communism to liberation theologians, from dictators to apostles to the poor.

My beef with the 5 Catholic Supremes is that they ignore ancient traditions of Catholic intellectual thought in service to their corportist agenda. Scalia, Thomas, Alito, and Roberts are just schilling for the corporate interests that put money in their pockets - their dancing to tune of their corporate masters who put them on the court.

Poor Kennedy keeps whipping back and forth from side to side depending on the issue when his conscience starts bothering him [a really Catholic trait!] - hopefully he'll retire soon to hang-out at the Hoover Institute [the conservative retirement community at Stanford for has-been right-wing ideologues like Condoleeza Rice].

The 5 Catholic Supremes have abandoned their catholicity IMO a long, long time ago.